NLRB Issues Decision on Notice Posting Rule

In 2013, two U.S. Court of Appeals decisions invalidated the NLRB's Notice
Posting Rule, which required that most private employers post a notice of
employee rights in the workplace.

The rule, entitled "Notification of Employee Rights under the National Labor
Relations Act," applied to any employer that falls under the NLRB's
jurisdiction. This covers a broad range of private sector employers whose
activity in interstate commerce exceeds a minimal level.

The two Court of Appeals decisions came from the D.C. Court of Appeals and
the 4th Circuit Court of Appeals.

National
Association of Manufacturers v. National Labor Relations Board, the D.C.
Court of Appeals case, held that rule violated section 8(c) of the National
Labor Relations Act (NLRA), because it makes non-coercive employer speech to be
an unfair labor practice or evidence of an unfair labor practice. The opinion
further held that the tolling provision, which would also be used to enforce the
rule, violated section 10(b) of the NLRA, and that the NLRB made no showing that
the 1947 Congress that enacted it intended to allow section 10(b) to be modified
in the manner of the tolling rule.

In Chamber
of Commerce v. NLRB, the 4th Circuit Court of Appeals held that the NLRB
exceeded its authority when it enacted this rule that would require employers to
post an official NLRB notice informing employees of their rights under the Act.
Writing for the Court, Judge Duncan reasoned that the NLRB did not have the
authority to promulgate notice requirements because the NLRA only empowers the
NLRB to carry out its defined reactive roles in addressing unfair labor practice
charges and conducting representation elections upon request.

NLRB Declines to Seek Supreme Court Review

On January 6, 2014, the NLRB issued a statement advising that it has decided
not to seek Supreme Court review of the two decisions.

Citing the D.C. Court of Appeals decision, the NLRB reiterated that it was
free to post the same message (that is on the poster) on its website, the poster
remains available on the NLRB website and it may be viewed, displayed, and
disseminated voluntarily.

The Takeaway

Employers are not required to post the NLRB's Notice of Employee Rights, and
will no longer have to wait and see if there will be Supreme Court review of
this issue.